People ex rel. Criscolla v. Adams — 70 N.Y. St. Rep. 512

Majority

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The People ex rel. Lorenzo Criscolla, Resp’t, v. Henry P. Adams, as Treasurer, etc., App’lt. The People ex rel. Andrew P. Johnson, App’lt, v. Henry P. Adams, as Treasurer, etc., Resp’t.

(Supreme Court, General Term, Second Department,

Filed July, 1895.)

Headnote

1. Interpreter—Kings county.

Under chapter 249 of 1869 and section 94 of Code, the board of supervisors of Kings county has authority to appoint only two persons as interpreters for the courts of that county.

2. Same—Removal.

An interpreter, appointed by the supervisors of Kings county, under chapter 249 of 1869, cannot be removed without cause.

3. Same—Appointment.

Where an interpreter, appointed under chapter 249 of, 1869, dies after the enactment of section 94 of the Code, and another person is appointed in his place and the second appointee resigns, and a third is appointed to fill the vacancy caused by such resignation, the last appointment is made under the act of 1S69, though the resolution making the appointment refers to section 94 of the Code.

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Appeal, in the first case, from, an order granting the application of the relator, add in the second case, from an order denying the application of the relator.

J. Édward Swansirom, for relators; George F. Elliott, for def’t.

— Order affirmed, on opinion of Bartlett, J., at special term.

Brows", P. J., dissented in the Criscolla case.

The opinion of Mr. Justice Bartlett at special term is as follows:

On January 28, 1895, the board of supervisors adopted a resolution declaring that John Jacobson was thereby appointed Scandinavian interpreter in the courts of record of Kings county, in place of Andrew P. Johnson, thereby removed, and that Louis Perry was thereby appointed Italian interpreter in such courts in place of L. Criscolla, likewise thereby removed. It is not pretended that either of these removals was for misconduct. Interpreters appointed by the board of supervisors are entitled to hold office during good behavior. Laws, 1869, ch. 249; Code Civ. Proc. § 94. Messrs. Johnson and Criscolla, claiming that their removal in this manner was illegal and void, have instituted the present proceeding to compel the county treasurer to pay them their salaries just as though the resolution of January 28, 1895, had never been passed.

The main ground of opposition to the application is the proposition that, under existing laws, the supervisors have the right to appoint only one interpreter for the courts of record in Kings county; that they have exercised that right in appointing Frank Maen, the German interpreter now in office; and hence that, the appointments of Messrs. Johnson and Criscolla being invalid as in excess of the powers of the board of supervisors, the county treasurer should not be directed or allowed to pay their salaries. This objection makes it necessary to determine what legislation is now in force in respect to the appointment of interpreter by the supervisors of this county, and what are the powers of the board thereunder.

Chapter 249 of the Laws of 1869 provides as follows: “ The board of supervisors of the county of Kings are authorized and empowered to designate and appoint some suitable person as interpreter, whose duty it shall be to attend the court of record in said county, at which witnesses are sworn and testify, and who shall be paid the sum of twelve hundred dollars per annum, during the good behavior of the said interpreter.” I am not able to discover that this act has ever been repealed. The learned counsel for the relators declares that it has not been repealed, and in this assertion he is sustained by Mr. Birdseye’s Chronological Table of New York Statutes. I do not think it was repealed by implication by the enactment of section 94 of the Code of Civil Procedure, as there is no necessary repugnancy, and that section is to be regarded simply as conferring authority to appoint a second interpreter. It reads as follows: “The board of super

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visors of the county of Kings may appoint an interpreter to attend the terms of the courts of record, except the county court held in that county, at which issues of fact are triable, who shall hold his office during good behavjor.” It is contended in behalf of the relators that this provision of the Code authorizes the appointment of more than one interpreter, and I am informed that such has been the construction put upon it by the board. 1 cannot concur in that interpretation. It is difficult for me to preceive how language could be used which would make it clearer that the appointment of one officer, and only one, was contemplated by the enactment of this particular section. The act of 1869, as already shown, had previously provided for the appointment of one; and my conclusion is that, under that statute and the Code, the extent of the power of the supervisors in this matter is the appointment of two interpreters,—one, by virtue of chapter 249 of the Laws of 1869; the other by virtue of section 94 of the, Code of Civil Procedure.

The papers before me make it plain that Mr. Mann, the German interpreter, holds his office under the act of 1869, though the resolution appointing him refers to section 94 of the Code. The first appointee under that statute was John Smith, April 27,1869. He died, and Bernard Midas was appointed in his place on November 11, 1886. Mr. Midas resigned; and oh December 12, 1889, Frank Mann was appointed expressly to fill the vacancy caused by his resignation. It appears to be equally clear that the first appointment, and the only one which can be regarded as having been made under section 94 of the Code, was that of Mr. Criscolla, who was appointed interpreter of Italian, French, and Spanish'on June'14, 1883. The averment in his affidavit that he has at all times behaved himself properly while holding the said office of interpreter is not denied. The resolution of the board of supervisors, assuming to remove him without cause, was therefore wholly nugatory, and cannot deprive him of the right to his compensation.

The case of Mr. Johnson is different. At the time when the board attempted to appoint him, in 1892, Mr. Mann and Mr. Criscella were in office. If the view which I entertain is correct, the board could not then lawfully appoint a third interpreter. Hence his appointment was invalid, and the court cannot command the county treasurer to make any further payment to him. Indeed, any such payment to him, or to any other persons claiming to be interpreters by virtue of an appointment by the supervisors, except Messrs. Mann and Criscolla, would seem to be without any authority in the law as it now stands.

Application in behalf of the relator Criscolla granted. Application in behalf of the relator Johnson denied.

No costs.